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Overview of the Litigation Process

There are generally two types of legal cases. Criminal cases involve a charge prosecuted by a governmental body that some individual broke a criminal law and should be punished. Civil cases involve private disputes between individuals where damages or some other remedy is requested. Administrative claims such as workers' compensation or social security claims are resolved through a form of civil proceeding conducted by an administrative body. These different types of cases involve different burdens of proof, different rules of procedure, and different roles for the expert witness.

The expert is most often asked to become involved in a civil lawsuit. The expert can come from many different professions, such as physicians, accountants, engineers, and economists.

In civil cases, the "plaintiff" is the party who brings the lawsuit and the "defendant" is the party who is being sued. Before a lawsuit is commenced, the injured party may be referred to as the "claimant." A civil action is started by filing a "pleading" called a "Complaint" with the court, which is then "served" on the defendant along with a "Summons." The defendant must then timely file a pleading called an "Answer." Depending upon the complexity of the lawsuit, other pleadings and parties may be added. The purpose of this pleadings stage is simply to determine the legal claims, defenses and other legal issues involved. The pleadings serve as a framework for later proceedings.

The parties may then conduct discovery, where each side seeks to discover the facts and evidence relevant to the legal issues involved and which tend to support or contradict a given party's position. Various discovery devices are allowed under the Rules of Civil Procedure. These include "Interrogatories" (written questions requesting information provided under oath); "Requests for Production of Documents or Things" (written requests for documentary or tangible evidence in the possession or control of the other party); "Requests for Medical Examination" (an examination by a physician or health care specialist of a party's own choosing of some physical or mental condition which has been placed "in controversy" by the opposing party); and "Depositions" (sworn testimony taken before a shorthand reporter wherein the attorneys can personally ask questions of a party or witness).

Thus, in the discovery phase, a "treating physician," i.e., one who has provided care and treatment to a party, may be asked to provide medical records, medical reports, and patient billing. Or, a company's C.P.A. may be required to provide financial records, tax returns, and client billings. Such an expert may also be asked to give a deposition. Further, a physician who has never treated a party may be asked to perform a mental or physical examination, or an accountant who has never worked for a party may be requested to review the books and records of a party and provide a report on behalf of a party to the lawsuit solely for litigation purposes and not for treatment or regular business purposes.

Much of today's litigation involves complex factual issues concerning such areas as medicine, psychiatry, engineering, economics, rehabilitation, and law. When issues are sufficiently complex that they are beyond the common knowledge or understanding of the judge or jury, "expert testimony" by "expert witnesses" may be necessary to assist the judge or jury in determining the case.

Therefore, a witness may become an "expert witness" who is called to testify as to certain facts within his or her knowledge and give "expert opinions" on certain complex factual issues. For example, a treating or examining physician may be called as an expert witness to testify concerning the examination, care, and treatment of a party and may be requested to give opinions on such issues as diagnosis, causation, prognosis, permanency, disability, need for future treatment, and reasonableness of costs of past or future treatment.

In investigating or evaluating a case involving complex factual issues, an expert may also be asked simply to assist an attorney or party in understanding the issues involved. In doing so, the expert may become an "expert consultant" or "specially retained expert." Such an individual does not thereby agree to become an "expert witness" for that party and can limit his or her review or involvement in the case simply to that of a consultant with no obligation to give expert testimony. He or she can also condition his or her involvement upon anonymity such that his or her name will not be disclosed to opposing counsel or to the court, unless compelling circumstances justify a court order requiring disclosure. If such a limited or conditional role is requested, it should be clearly understood between the expert and the attorney, and preferably reduced to writing, to avoid future confusion or disputes.

An "expert consultant" or "specially retained expert" may agree to become an "expert witness" on the issues he or she has reviewed. These may involve complex issues of causation, or apportionment of injuries as between multiple causes, in claims involving products liability, medical liability, workers' compensation, or other personal injury actions. This may also include issues such as "standard of care," "informed consent," or other issues involving propriety of conduct or responsibility.

Sometime before trial, each party must disclose his or her "expert witnesses" to the other side and to the court. Simply because an expert is disclosed by one party or another does not suggest that the expert's opinions are expected to be totally favorable to that party or that the expert should be anything other than fair and objective to all sides. The disclosure of the experts is pursuant to the rules governing procedure in the courts where the case is filed. If the expert is disclosed past the required deadlines in the rules, the expert may not be allowed to testify.

The rules are quite specific and broad requiring the items that must be disclosed for an expert specially retained to testify and include such items as a copy of the expert's report or summary; a complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.

Experts such as treating physicians are often endorsed as possible expert witnesses based solely on their role as a treating physician and the notes or records they have generated, even though they have never been contacted by the lawyer. The disclosures required for these experts are much less burdensome. Opinions or other potential testimony of an expert that are not adequately disclosed to the other side and to the court can result in their not being allowed at trial.

After an expert witness is disclosed, he or she may be asked to submit to a deposition so that the opposing attorney can gain further knowledge as to that expert's opinions and possible testimony. This also assists the opposing attorney in assessing the need for obtaining an expert of his or her own choosing to address the same issue.

If the case proceeds to trial, those experts who have been disclosed as expert witnesses may be called to testify. The party who calls the witness asks the first series of questions on "direct examination," the opposing attorney can then "cross-examine," and there may be further "redirect examination" by the attorney who called the witness. Adequate pretrial consultations should prepare the expert concerning this trial testimony.

In jury trials, the judge determines the admissibility of evidence and instructs the jury on the applicable law. The jury determines the facts based on the credibility of the witnesses and the weight of the evidence and determines the outcome based on the law as provided by the court. If legal errors were made by the court in ruling on motions, admitting evidence, or instructing the jury, a party may ask the trial court to correct that error or may appeal to an appellate court.

Most civil cases are settled. Settlement can occur at any time, including before the case is filed, during the pretrial phase or discovery phase, during trial or even jury deliberations, or after trial and during appeal.